Like a cancerous tumour in the national conscience, the Arms Deal Saga (involving more than R1.5 billion in alleged bribes), instead of going into remission, is growing malignantly. On 20 September the Constitutional Court will hear an application for a full judicial enquiry into the affair – and South Africans will hold their collective breath that the tumour can successfully be excised.
Lieutenant General Anwar Dramat, head of the directorate for priority crime investigation –aka “the Hawks” – in September 2010 told the Parliamentary Standing Committee on Public Accounts (Scopa) the Hawks had inherited from the Scorpions 460 boxes and 4.7 million computer pages of evidence against BAE.
I sat directly behind Dramat, and took detailed notes of the proceedings. He announced the BAE case number as Brooklyn CAS 916/11/2009. To the astonishment and anger of Parliamentarians, Dramat then declared that with only one officer assigned to the case it would take years to analyse so much evidence.
Parliamentarians voiced their concerns about “foot-dragging,” and asked why there was no political will to deal with the matter more urgently. Menzi Simelane, the director of public prosecutions, responded: “The matter will be dealt with in accordance with the law, and not to suit some political parties. I will not rush the matter, and it will be given the appropriate and normal way of doing business.”
Dramat’s office announced two weeks later that the Hawks had abandoned the arms deal investigations. Consequently, in early October, I filed an application in the public interest with the Constitutional Court requesting it to overrule President Jacob Zuma’s continuing refusal to appoint a judicial commission of inquiry into the arms deal.
The basis of my application was, given such massive volumes of evidence against BAE, it was irrational, and unconstitutional, for the President to continue to block demands from many quarters for a judicial inquiry. Archbishop Njongonkulu Ndungane first called for such an investigation back in August 1999, before the so-called De Lille dossier that ignited the arms deal scandal made its appearance.
A six-page memorandum by Dramat’s deputy, Major General Hans Meiring in September 2010 had motivated why the Hawks should abandon their arms deal investigations. It pleaded that the right to a speedy trial might have been compromised by the passage of time since the arms deal took place in the 1990s, and that companies, witnesses and evidence were no longer available.
In addition, it declared that a proper investigation would be resource-intensive, some suspects had died and that parallel foreign investigations had been closed. Meiring’s suppositions were patently false.
The beneficiaries of the BAE bribes detailed in 160 pages of affidavits from the Scorpions and the British serious fraud office are, with one exception, still alive and resident in South Africa for most or at least part of the year.
In addition, investigations in the US and Sweden against BAE were still continuing. US authorities in February 2010 fined BAE $400 million for laundering bribes through the American banking system plus an additional $79 million in May 2011 for 2,591 violations of American arms export regulations.
My case went to the Constitutional Court in May 2011. In preliminary exchanges the President’s counsel Muromo Moerane had refused to deal with the substance of the matter. He tried to bludgeon the 11 judges with legal point-taking, and insisted there was no presidential obligation to appoint a judicial commission of inquiry.
When the legal technicalities ran dry, a visibly irritated Chief Justice Sandile Ngcobo challenged Moerane to “an election”, either to proceed with the substance on the basis of evidence I had submitted or, alternatively, request a postponement.
A postponement was granted until 20 September 2011 against an instruction from the Court that I should supplement my papers by 15 June and, in turn, that the President would respond by 1 August. We used that opportunity to file an additional 1,500 pages of evidence into the Court record.
Meanwhile, Swedish TV4’s “Kalle Fakta” (“Cold Facts”) programme in late May 2011 aired a 40-minute documentary detailing how bribes were paid to Fana Hlongwane through an SAAB subsidiary named SANIP (Pty) Ltd. SAAB’s chief executive officer, Häkan Bushke confirmed three weeks later that BAE had fraudulently misused SAAB’s accounts to pay bribes of R24 million to Hlongwane.
Hlongwane was one of former defence minister Joe Modise’s advisors, and is a prime beneficiary of BAE’s bribes. The affidavits also reveal how British lawyers close to former British prime minister Margaret Thatcher had set up SANIP to supervise BAE’s offset obligations under the arms deal, but, in reality, simply a vehicle for bribery payments.
Allegations of BAE’s use of Swedish institutions to launder bribes to ANC politicians are not new. Whispers swept through the corridors of Parliament in late 1998 that Tony Yengeni was a recipient of a £1 million “first success fee” for his assistance in awarding the arms deal warplane contracts to BAE.
In June 1998 I sat directly across the table from Yengeni when he hosted a Parliamentary breakfast for the visiting Swedish defence minister Bjorn von Sydow. In response to Von Sydow’s speech, Yengeni declared that the decision on what equipment South Africa would buy would “depend upon the generosity of the offsets”. His body language screamed: “How big are the bribes?”
Von Sydow replied that he had “got the message,” but the decision was not his to make. He then repeated: “I have got the message, and will take that message back with me to Sweden.”
Numsa shop stewards in December 1998 informed me that a further R30 million in BAE bribes for ANC politicians ahead of the June 1999 elections was being transferred via Sanco. The bribes were being routed through two Swedish trade unions and would be described as funding for an industrial training school.
Swedish journalists confirmed the payments. Through Campaign Against Arms Trade (CAAT) in London, I asked the British government to investigate. Scotland Yard was appointed to the task. I learnt eventually that it was then not illegal in British law to bribe foreigners, and therefore there was no crime to investigate. (It became illegal in 2002, but the British government remains extremely lax in prosecuting briber companies, especially BAE).
Swedish prime minister Goran Persson brought a 700-person trade delegation to South Africa in November 1999. His prime objective was to lobby for the BAE/Saab Gripen fighter aircraft contracts. Persson’s “international advisor” Roger Hallhag was grilled at a civil society seminar at the Centre for the Book in Cape Town where he admitted that offsets are internationally notorious for corruption. He compounded his blunder by pleading that “lower standards apply in the third world”.
British minister Peter Hain insisted to me in January and February 2000, both in writing and face-to-face when he visited Cape Town, that there was absolutely no evidence of corruption in the BAE contracts.
His cabinet colleague, the secretary for trade and industry, Patricia Hewitt finally admitted in the British parliament in June 2003 that BAE had paid “commissions” (a euphemism for bribes) to secure its contracts with South Africa, but, she pleaded, “they were within reasonable limits”.
Prime minister Tony Blair in 2006 quashed British serious fraud investigations into allegations of massive bribery payments by BAE to Saudi Arabian princes. He claimed the investigations violated British national security.
CAAT took the British government to court in London and won its case. On appeal to the House of Lords, the “law lords” overruled the court, and decided that the government holds the prerogative to determine what does and does not constitute “national security”.
The recent announcement that the Hawks have reopened their investigations into the arms deal because of the evidence flowing from the Swedish TV4 programme is, frankly, a “joke”. There is no shortage of evidence already in their possession, including the affidavits which detail why and how BAE paid bribes of £115 million (R1.5 billion), to whom and into which bank accounts. What is necessary is not further investigation, but prosecution.
In terms of the “remedies in case of bribes” clauses in the supply contracts, the government has the right summarily to cancel the contracts and to claim compensation. Cancelling the BAE and BAE/Saab contracts could recover R35 billion for South African taxpayers, as well as save future expenditures on aircraft for which the country has neither the pilots to fly them nor mechanics to maintain them.
Most importantly, and unlike England, post-apartheid South Africa is a constitutional democracy. Section 2 of the Constitution stipulates: “This Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.”
In short, not even the President is above the law. Back in 2001 the Institute for a Democratic SA described the arms deal scandal as the “litmus test of South Africa’s commitment to democracy and good governance”.
This is the heart of my case before the Constitutional Court on 20 September 2011. Or will our much-lauded Constitution become yet another casualty of the arms deal debacle? DM
"I know of a cure for everything: salt water...in one way or the other. Sweat or tears or the salt sea." ~ Karen Blixen